If you’re an employer with questions regarding employee marijuana use, you’re not alone. State and local governments are increasingly paving the way for cannabis use at what is generally viewed as a rapid pace. In addition to states where legislatures are acting independently to pass cannabis-related laws, in every election cycle, more marijuana-related issues find their way onto state ballots and more candidates run on platforms that expressly include marijuana reform. After every election cycle it becomes increasingly clear that marijuana is, with some exception, a “winning issue.” In fact, the majority of states now have some form of either medical or recreational marijuana laws on the books.
For instance, Minnesota has legalized medical marijuana use. The laws governing medical marijuana use prohibit termination of and discrimination against an employee who tests positive for cannabis on a drug test if the employee is a patient enrolled in Minnesota’s cannabis registry program, unless the employee was impaired by the marijuana during employment. Cannabis remains a Schedule I illegal drug under federal law despite legalization efforts here in Minnesota and elsewhere. Because of this, many crucial questions concerning marijuana use remain unanswered, including in the area of workplace accommodations. The answers to these questions depend largely on how state legislatures, including here in Minnesota, have drafted laws regarding marijuana use. But not all questions have answers, and some parties are looking to the courts.
There are several key cases currently working their way through federal and state courts that may ultimately affect employee rights when it comes to marijuana use, including issues related to employee accommodations in the workplace. One such case, Terry v. United Parcel Services, Inc., asks a federal court in Arizona to consider whether an employer who terminates an employee based on a positive drug test has violated of the Americans with Disabilities Act (“ADA”) where that employee is a registered cardholder of a state-sponsored medical marijuana program and is not impaired while at work. Under current federal law, the plaintiff in Terry has a tough case to win. While the ADA prohibits discrimination against individuals with recognized disabilities, the ADA does not consider an employee who engages in the illegal use of drugs a qualified individual with a disability. Because marijuana remains illegal under federal law despite its standing under any state law, the court is unlikely to find a violation of the ADA. However, that doesn’t mean that parties will not continue to push cases like this because, regardless of the eventual ruling in Terry, the intersection between medical marijuana and the ADA is a natural one and is sure to garner increasing attention. After all, many individuals who are approved for medical marijuana use often suffer from one or more disabilities or conditions recognized under the ADA.
The Terry case serves as a great example of the kind of marijuana-related litigation that will have the potential to greatly affect employer practices nationwide. Over the next several years, expect to see increased attention on these types of issues as we further transition into a country that more fully legalizes cannabis use.